On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-03-0223.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 8, 2012
Before Judges Graves and Harris.
Defendant Raul Calderon appeals from a June 12, 2009 order denying his petition for post-conviction relief (PCR). We affirm.
Following a jury trial in 2005, Calderon was convicted of third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3). The trial court granted the State's motion to impose an extended term of imprisonment and sentenced Calderon to eight years with a parole disqualifier of four years. On direct appeal, we affirmed the conviction and sentence. State v.
Calderon, No. A-2686-05 (App. Div. Sept. 9, 2008). The Supreme Court denied certification. State v. Calderon, 197 N.J. 13 (2008).
In December 2008, Calderon filed an application for PCR. A non-evidentiary hearing was conducted by Judge Joseph P. Perfilio on June 12, 2009. Judge Perfilio served as the trial judge. After reviewing the submissions of the parties and hearing counsels' arguments, Judge Perfilio rejected Calderon's claims regarding the supposed ineffective assistance of trial counsel, concluding, among other things, that "the allegations of deficient performance [were] not supported by the evidence." This appeal followed.
On September 26, 2003, Calderon was observed by two Elizabeth police officers engaged in what appeared to be a hand- to-hand drug transaction with a man, later identified as Calderon's co-defendant, named Tomas Gonzalez. After Gonzalez was arrested, he inculpated Calderon as the person who sold him the drugs that were found on his person. However, according to the police report, Gonzalez "then began changing his story saying [that] he bought the drugs from another person."
Before jury selection, Calderon's defense counsel indicated that she was considering calling Gonzalez as a defense witness, who by that time had entered a guilty plea to the indictment. Because Gonzalez was then incarcerated in the Mountainview correctional facility, defense counsel requested the assistance of the court to ensure his attendance a few days later. Ultimately, instead of utilizing Gonzalez, who had given disparate versions to the police of who sold him the drugs, Calderon's attorney called a criminal investigator as a witness to ...